Corporate Immigration Law News

• 17Jun

  CLIENT ALERT: Court Partially Stays Order Vacating $100,000 H-1B Fee Pending Appeal

  H-1B Visa News Comments Off on CLIENT ALERT: Court Partially Stays Order Vacating $100,000 H-1B Fee Pending Appeal

  As we previously alerted, on June 8, 2026, the U.S. District Court for the District of Massachusetts issued a Memorandum and Order vacating the $100,000 H-1B fee. Such fee applies to all new H-1B hires who require processing at consulates outside the United States. The federal government has since filed a notice of appeal and moved to stay the district court’s ruling while that appeal proceeds.

  On June 12, 2026, the Court entered an electronic order resolving the government’s motion. In doing so, Judge Sorokin denied the government’s request for a stay pending appeal, relying on the reasoning set out in the court’s June 8 Memorandum and Order. The Court did, however, grant in part the government’s alternative request for an administrative stay.

  Under the June 12 order, the court’s earlier order vacating the $100,000 H-1B fee is temporarily stayed. That administrative stay remains in effect pending a decision by the U.S. Court of Appeals for the First Circuit on the government’s anticipated motion to stay, and it is conditioned on the government filing that motion in the First Circuit no later than June 18, 2026.

  For full details and practical implications, see the full Client Alert here.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 11Jun

  CLIENT ALERT: Federal Court Strikes Down the $100,000 H-1B Payment Requirement

  H-1B Visa News Comments Off on CLIENT ALERT: Federal Court Strikes Down the $100,000 H-1B Payment Requirement

  On June 8, 2026, the U.S. District Court for the District of Massachusetts (Sorokin, J.) invalidated the $100,000 payment requirement that Proclamation 10973 imposed on certain H-1B petitions in September 2025. Granting summary judgment to a coalition of twenty states, the court held that the payment is, in substance, an unauthorized tax.

  The court reasoned that the payment is a tax rather than a penalty because hiring H-1B workers remains lawful, and that INA §§ 212(f) and 215(a)—which authorize the President to impose “restrictions,” “rules,” “limitations,” and “exceptions” on the entry of noncitizens—do not, by their ordinary meaning, include the power to tax. Applying the Supreme Court’s recent decision in Learning Resources, Inc. v. Trump, the court found that Congress had not clearly delegated its taxing power and that the Policy was therefore ultra vires. The court also confirmed that the states had standing, that the consular-nonreviewability doctrine did not bar their forward-looking challenge, and that the agencies’ implementation was reviewable under the APA.

  Click here for additional details on this Client Alert.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 04Jun

  CLIENT ALERT: USCIS Reframes that Adjustment of Status is “Extraordinary” Discretionary Relief: What Employers Need to Know

  Adjustment of Status Comments Off on CLIENT ALERT: USCIS Reframes that Adjustment of Status is “Extraordinary” Discretionary Relief: What Employers Need to Know

  On May 21, 2026, U.S. Citizenship and Immigration Services issued Policy Memorandum PM-602-0199, which formally reframes its position that adjustment of status under INA § 245 is a matter of “discretion and administrative grace” — an extraordinary form of relief that permits applicants to bypass the ordinary consular immigrant visa process. While USCIS characterizes the memorandum as a reminder of longstanding policy, its practical effect is to signal a more rigorous discretionary framework that will directly affect employer-sponsored green card cases and the foreign national employees who depend on them.

  The memorandum instructs USCIS officers to treat every adjustment of status application as a request for an exceptional benefit, not a routine procedural step. Officers are directed to weigh the totality of an applicant’s circumstances — including any violations of immigration status, unauthorized employment, fraud, or conduct inconsistent with the purpose of the applicant’s nonimmigrant admission or parole — as adverse factors that the applicant must overcome by demonstrating “unusual or even outstanding equities.” Critically, the memorandum states that the mere absence of adverse factors is not, by itself, sufficient to merit a favorable exercise of discretion.

  Click here for additional details on this Client Alert.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 14Apr

  HR CLIENT ALERT: DOL Turns Up the Heat on Employer Sponsorship: Higher Wage Floors and Rising H-1B Enforcement

  DOL News, H-1B Visa News Comments Off on HR CLIENT ALERT: DOL Turns Up the Heat on Employer Sponsorship: Higher Wage Floors and Rising H-1B Enforcement

  1. DOL’s Proposed Prevailing Wage Rule Is One to Watch

  The U.S. Department of Labor’s proposed prevailing wage rule is one that may have a significant impact on companies and HR professionals. Published in the Federal Register on March 27, 2026, the proposal would significantly raise prevailing wage requirements across the H-1B, H-1B1, E-3, and PERM programs, with comments due by May 26, 2026.

  If finalized, the changes would be especially significant for entry-level hiring. The proposal would increase the Level 1 wage by approximately 33%, which equates to an average annual increase of approximately $14,000 per affected worker.

  For employers, this is not a technical change, but a material increase in labor costs that would affect not only new H-1B filings, but also extensions, amendments, and PERM-based green card sponsorship strategies. DOL’s own data reflects how broad the impact could be: in FY 2024, 62.6% of H-1B workers were certified at Wage Level I or II, meaning a substantial share of current sponsorship cases sit in the wage bands most directly impacted by the proposal.

  Why this matters for HR

  For many employers, the traditional foreign national talent pipeline has long been relatively predictable: F-1 student to OPT to H-1B professional to PERM-based permanent residence. That pathway is becoming more expensive and less predictable at each stage.

  For HR teams, that means the economics of sponsorship may change materially, particularly for recent graduates, early-career professionals, and employers who require foreign nationals as an integral part of their workforce to meet their human resource needs.

  Continue here for additional details on this HR Client Alert.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 17Dec

  Client Alert: Consular Posts Rescheduling H-1B Appointments Following Implementation of Online Presence Review

  H-1B Visa News Comments Off on Client Alert: Consular Posts Rescheduling H-1B Appointments Following Implementation of Online Presence Review

  Beginning December 8, 2025, some applicants with H-1B and H-4 visa appointments began receiving notices that their consular interviews scheduled on or after December 15, 2025, were being unilaterally rescheduled, many to March 2026. Some appointments have been rescheduled to June 2026. Consular posts attribute these changes to the Department of State’s implementation of the new online presence review requirement for H-1B applicants and their dependents to reduce the daily interview capacity needed to carry out this expanded vetting.

  Multiple posts, including Hyderabad and Chennai, have issued notices informing applicants that their original appointment dates cannot be honored due to operational constraints. Applicants are being instructed not to appear on their original date and to attend on the newly issued appointment date instead. While many of the rescheduled appointments are at Mission India posts, AILA has received reports of posts rescheduling appointments in Ireland and Vietnam.

  Key Points

  • Mass Rescheduling of H-1B and H-4 Appointments: Interviews scheduled on or after December 15, 2025, are being reassigned to dates several months later, with many new appointments falling in March 2026, and some as late as June 2026.
  • Reason for Rescheduling: Posts cite the Department’s implementation of online presence review for all H-1B applicants and dependents and the need to reduce the number of applicants processed each day while this vetting is conducted.
  • Applicants Instructed Not to Appear on Original Dates: Notices state that applicants will not be seen on their initial appointment date and should appear only on the newly assigned date.
  • Biometrics Appointments Unchanged: Applicants are advised that their Visa Application Centre (VAC) biometrics appointments remain valid and unaffected.
  • Limited Rescheduling: Applicants who cannot attend on the new date may reschedule online, but are limited to one opportunity to reschedule. Fee receipts older than one year are considered expired and cannot be used to reschedule.

  Guidance for Clients

  • Address the Risk of Extended Travel Disruption: Applicants who travel abroad for visa stamping may be unable to return to the United States for several months if their appointment is rescheduled. Clients with expired visas or those seeking initial issuance should avoid non-essential travel.
  • Monitor Appointment Portals: Applicants should log in to their visa appointment profiles to retrieve updated appointment letters and check for message-center notifications.
  • Rescheduling Constraints: Applicants should understand that they may reschedule only once and only if their fee receipt remains valid. Fee receipts should remain valid for one (1) year. Missing or canceling the rescheduled appointment may result in forfeiture of the fee.
  • Reduced Consular Capacity: Consular posts are temporarily lowering daily interview numbers to accommodate online presence review, which may contribute to further shifts in appointment availability.
  • Employer Communication: Affected employees facing delayed visa issuance should promptly notify employers to plan for remote work arrangements, project delays, or other contingencies.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 05Dec

  Client Alert: Guidance on New U.S. Department of State Screening Policy for H-1B and H-4 Visa Applicants

  Department of State Comments Off on Client Alert: Guidance on New U.S. Department of State Screening Policy for H-1B and H-4 Visa Applicants

  The U.S. Department of State (DOS) has announced a significant change to its visa-vetting procedures that will affect all individuals applying for H-1B visas and their H-4 dependents. Beginning December 15, consular officers will conduct an online presence review – commonly referred to as social-media screening – for all H-1B/H-4 applicants. This requirement previously applied only to applicants in the F, M, and J categories.

  Read a summary of the policy and recommended steps applicants should take before attending a visa interview here.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 05Nov

  Client Alert: U.S. Department of Labor (USDOL) Has Resumed Processing of Prevailing Wage Determinations (PWD), Labor Certification Determinations (PERM), and Labor Condition Applications (LCAs)

  DOL News Comments Off on Client Alert: U.S. Department of Labor (USDOL) Has Resumed Processing of Prevailing Wage Determinations (PWD), Labor Certification Determinations (PERM), and Labor Condition Applications (LCAs)

  On October 31, 2025, the U.S. Department of Labor (USDOL) announced that the Office of Foreign Labor Certification (OFLC) has resumed processing of Prevailing Wage Determinations (PWD), Labor Certification Applications (PERM), and Labor Condition Applications (LCAs) through its FLAG system, following a complete suspension of such processing due to the government shutdown, which has directly impacted certain employment-based immigration processes.

  Key Highlights:

  • USDOL has restarted adjudication of PWD requests, enabling employers to proceed with early, wage-setting steps required for PERM recruitment and filing.
  • PERM processing has resumed, allowing pending applications to advance and new filings to be submitted under standard procedures.
  • LCA processing has restarted, restoring the pathway for H-1B, H-1B1, and E-3 filings that depend on certified LCAs in order to prepare and file these petitions.

  Impact on Employers and Foreign Nationals:

  • Employers with time-sensitive hiring plans may now re-sequence recruiting, filing, and onboarding timelines that were previously on hold.
  • Foreign nationals awaiting case advancement should expect delays due to agencies working through backlogs, and USCIS filings tied to certified LCAs and PERM approvals can be re-initiated as certifications are issued.

  Next Steps:

  • Recalibrate case timelines: Coordinate with immigration counsel to update filing calendars for PWD, PERM, and H-1B/H-1B1/E-3 matters and to identify cases that can immediately progress.
  • Prioritize critical roles: Work with immigration counsel to prioritize filings for positions with expiring statuses or business-critical start dates.
  • Refresh recruitment plans: For PERM cases awaiting PWDs, work with immigration counsel to prepare recruitment materials and internal processes to launch promptly upon receipt of wage determinations.
  • Validate data and attestations: Confirm job details, worksites, and wage levels with immigration counsel to ensure accuracy before submission, particularly for LCAs with multiple worksites or remote arrangements.
  • Monitor processing trends: We will continue to track USDOL case movement and any updated guidance that could affect prevailing wage calculations, audit selection, or filing logistics and strategies.

  We will continue to monitor regulatory developments and legal challenges and will provide you with further updates as more information becomes available.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 29Oct

  Client Alert: DHS Ends Automatic 540 Day EAD Extensions for Most EAD Categories

  Adjustment of Status Comments Off on Client Alert: DHS Ends Automatic 540 Day EAD Extensions for Most EAD Categories

  Today, the Department of Homeland Security (DHS) issued an interim final rule, to be published tomorrow, October 30, eliminating the practice of automatically extending Employment Authorization Documents (EADs) for most foreign nationals who file timely renewal applications.  Invoking the “good cause” exception of the APA under 5 USC 553(b)(B)-(d)(3), DHS has issued this interim final rule without prior notice or public procedure.

  Key Highlights:

  • Effective October 30, 2025, foreign nationals applying for EAD renewals will no longer receive an automatic extension of their work authorization while the renewal application is pending.
  • This rule applies to EAD renewals filed by eligible H4 spouses (C26); Applicants for Adjustment of Status (C09); Applicants for Temporary Protected Status (A12 and C19); and others
  • DHS has stated that this change is intended to allow for more frequent screening and review of foreign nationals’ eligibility and background information before work authorization is extended.

  Impact on Employers and Employees:

  This rule significantly increases the risk of gaps in employment authorization for individuals in all categories previously covered by automatic extensions.

  Employers should expect:

  • Increased I-9 compliance risks, as employees who previously relied on automatic extensions may temporarily lose work authorization if renewal adjudications are delayed in adjudication.
  • The potential need for workforce planning adjustments to manage interruptions in employment eligibility for affected employees.

  Recommended Employer Action Steps:

  1. Identify affected employees: Review your workforce to determine which employees currently rely on automatic EAD extensions.
  2. Encourage early renewals: USCIS advises filing EAD renewal applications up to 180 days prior to expiration to mitigate lapses in work authorization.
  3. Update HR protocols: Ensure that internal tracking systems and Form I-9 reverification processes account for the new rule and possible lack of  continuity of employment authorization.
  4. Communicate proactively: Inform affected employees of the change well in advance to allow sufficient time to file for renewals and processing.
  5. Monitor further guidance: DHS may issue additional implementation details or exceptions through forthcoming Federal Register notices.

  Next Steps:

  The interim final rule applies only to EAD renewals filed on or after October 30, 2025.
  EADs that received automatic extensions before that date will remain valid under the prior policy until their stated expiration.

  What this interim final rule presupposes is that U.S. Citizenship and Immigration Services (USCIS) will be able to adjudicate EAD renewal applications within the 180-day filing window—a pace that, based on current processing backlogs, is unlikely.  Given the tectonic operational and economic fallout expected from this change, and the fact that DHS bypassed the normal administrative rulemaking process by invoking the “good cause” exception under the Administrative Procedure Act (5 U.S.C. § 553(b)(B), (d)(3)), litigation is anticipated.

  In the interim, it is strongly recommended that employers conduct an immediate audit of employees who rely on EADs and ensure that renewal applications are filed as close to 180 days prior to expiration as possible. Early filing will maximize the likelihood of renewal adjudication before current work authorization lapses and may help avoid unnecessary terminations resulting from this unfortunate policy shift.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 23Oct

  Client Alert: Updated Guidance on Presidential Proclamation That Imposes $100,000 Payment on Certain H-1B Petitions

  H-1B Visa News Comments Off on Client Alert: Updated Guidance on Presidential Proclamation That Imposes $100,000 Payment on Certain H-1B Petitions

  Overview

  On October 20, 2025 USCIS issued updated guidance regarding the September 19, 2025 Presidential Proclamation entitled “Restriction on Entry of Certain Nonimmigrant Workers”, which imposes an additional $100,000 payment on certain H-1B petitions as a condition of eligibility.

  Below is a summary of the additional guidance:

  Who Is Subject to the $100,000 Payment

  The Proclamation applies to new H-1B petitions filed on or after September 21, 2025 in the following situations:

  • Beneficiaries outside the United States who do not hold a valid H-1B visa.
  • Petitions requesting consular notification, port-of-entry notification, or pre-flight inspection for beneficiaries, even if they are in the United States at filing.
  • Petitions where a change of status, amendment, or extension of stay is denied because USCIS determines the beneficiary is ineligible for such relief (e.g., not in valid status, or departs the U.S. before adjudication).

  The Proclamation does not apply to:

  • H-1B visas or petitions filed before September 21, 2025.
  • Current H-1B visa holders traveling abroad and reentering on existing visas.
  • Amendment, change of status, or extension petitions for foreign national inside the U.S. if granted.
  • Of Important Note: While not explicitly stated, a fair reading of the guidance would indicate that the additional payment would not apply to petitions (if granted) filed with respect to H-1B transfers requesting an extension of stay from inside the U.S. or any prospective H-1B cap cases filed for a foreign national requesting a change of status from within the U.S. Further, a foreign national beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition.

  How and When to Pay

  • The $100,000 payment must be made before filing the H-1B petition.
  • Proof of payment via pay.gov or evidence of an approved exception must be included with the petition.
  • Petitions without proof of payment or an approved exception will be denied.

  Exception Process

  The Secretary of Homeland Security may grant exceptions only in extraordinarily rare circumstances, where all the following are established:

  1. The worker’s presence in H-1B status is in the national interest;
  2. No American worker is available for the position;
  3. The worker poses no threat to U.S. security or welfare; and
  4. Requiring the payment would significantly undermine U.S. interests.

  Requests for exceptions, with supporting evidence, must be sent to: H1BExceptions@hq.dhs.gov

  Key Takeaways

  • The Proclamation primarily affects new overseas hires and consular cases.
  • Current H-1B employees and pending extensions or amendments within the U.S. are generally not affected.
  • It appears clear that H-1B transfer petitions requesting an extension of stay and prospective H-1B cap subject petitions requesting a change of status are not subject to the additional payment.

  We will continue to monitor regulatory developments and legal challenges and will provide you with further updates as more information becomes available.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

• 26Sep

  Client Alert: U.S. Department of Homeland Security Proposes New Weighted H-1B Cap Selection Process Favoring Higher Wage Levels

  H-1B Visa News Comments Off on Client Alert: U.S. Department of Homeland Security Proposes New Weighted H-1B Cap Selection Process Favoring Higher Wage Levels

  On September 24, 2025, the Department of Homeland Security (DHS) published a proposed rule that would significantly alter the annual cap-subject H-1B lottery selection process, replacing the current randomized lottery with a wage-based weighted system. This change would give priority to higher-paid workers in the annual allocation of H-1B visas under the cap.

  If the proposed rule becomes a final rule, it would prioritize the selection of H-1B cap-subject registrations based on the wage level offered to the prospective H-1B candidate, assigning more weight to those offered higher wage levels as defined by the Department of Labor’s (DOL) Occupational Employment and Wage Statistics (OEWS). Under the proposed rule, beneficiaries offered a position at the highest wage level (Level 4) would receive four entries in the lottery pool, whereas those offered a position at a normal entry-level wage (Level 1) would receive only one.

  Clearly, the proposed rule would unfairly advantage the “hyperscaler” technology companies at the epicenter of the AI boom (e.g.; Amazon, Tesla, Google, Microsoft) who can offer higher level wages to their H-1B candidates, while distinctly disadvantaging early-career professionals, recent graduates, and employers in other industries. Moreover, the proposed rule relies on DOL wage levels as a proxy for skill, which may not accurately reflect the qualifications of foreign workers or the complexity of the proffered position. Additionally, the proposed rule would impose new obligations on petitioning employers during the H-1B registration process which do not exist under the current lottery system. For example, sponsoring employers would be required to certify the occupational code, wage level, and work location for each H-1B cap registration. In cases where a single beneficiary has multiple registrations from separate petitioning entities, the lowest wage level among all registrations would be used to determine the candidate’s selection weighting thus, introducing variables in the process which are outside of any one petitioning employer’s control.

  For key details of the proposed H-1B Cap Selection change click here.

  If you have any questions please contact: Anthony F. Siliato, Scott R. Malyk, or Stacey A. Simon.

   

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